This essay was presented as the Sullivan Lecture at Capital University Law School, January 2001. J.D., Duke University 2002.
The Supreme Court of Ohio, like many highest state courts, is in a crisis resulting from an unseemly flood of money into statewide judicial election campaigns.1 We address that crisis in this article.
Most judges around the world are not elected. And, of course, our federal judges are not. We hope it will not try the patience of readers if we first explain why those who sit on the state courts in Ohio are elected. That hope is nourished by the fact that the best published justification for electing judges was written in Chillicothe, Ohio, in 1848 in a work we will briefly review.
The reasons why Ohioans chose in the nineteenth century to elect their judges are still present and perhaps greater even than they were in 1848, but the impediments to such elections are now much greater. The question we propose to answer is whether there are steps that might be taken that would ease the present crisis without abandoning the aims of the state constitution. We believe there are.
The provisions of the Ohio constitution bearing on the Supreme Court of the state were crafted by Ohioans known to their political adversaries as Barnburners.2 Barnburners derived their politics from two texts they deemed sacred: Thomas Jefferson's Declaration of Independence and Page 456 Andrew Jackson's Bank Veto Message.3 Barnburners preferred to identify themselves as members of an "Equal Rights Party;" this "party" was not a political organization, but merely a shared intention to resist the claims of privilege. Its motto was "free labor, free speech, free trade, and free schools," meaning they opposed slavery, practiced divergent forms of Protestantism, resisted the claims of corporate industry to a protective tariff, and sought education for their children in community schools.4Their ideal was a classless society.
Barnburner ideas about law dominated American legal institutions in the nineteenth century. They led the assault on apprenticeship requirements for admission to the bar, which they saw as undemocratic sanctuaries of privilege.5 They were advocates for the simplification of civil procedure to reduce the amount of arcane knowledge needed to present a case in court.6 They were the champions of the contingent fee7and the American Rule forbidding routine fee-shifting against losing parties8 to protect the access of impecunious plaintiffs to judicial forums. They disfavored the mysteries of judge-made law and promoted Page 457 codification to make the law's texts equally accessible to all.9 They also favored the popular election of judges to limited terms as a means of assuring both their independence from the selfish manipulators of legislative assemblies and their accountability for their fidelity to the legal texts, common interests, and moral values of the communities they served.10 They viewed all of these programs for law reform as means of facilitating the protection of the equal rights of citizens otherwise exposed to the unwarranted claims of privilege.
The leading Barnburner in matters of law reform was David Dudley Field of New York.11 Others of a more academic bent established law schools at New York University12 and the University of Michigan.13 One, Thomas Cooley of Michigan,14 was the most respected lawyer in America through most of the second half of the nineteenth century and the author of an elegant book comparing the constitutional laws of the states.15 But the principal Barnburner legal theorist was Frederick Grimké of Chillicothe.
Grimké was born in South Carolina in 1791, one of fourteen children sired by a Charleston lawyer educated at Eton and Cambridge University.16His father served as a lieutenant colonel in the revolutionary army and represented South Carolina in the Continental Congress. The young Grimké was the senior orator of his Yale class of 1810 and practiced law in Charleston with his father until 1819. When his father died, he moved to the pioneer village of Chillicothe, where he was quickly recognized as a Page 458 man of exceptional ability and modesty. Within eighteen months of his arrival in Ohio, he was appointed to the Court of Common Pleas. In 1837, he was elevated to the Supreme Court of Ohio, a position from which he retired in 1842 in order to devote himself to philosophy.
Grimké remained a bachelor throughout his life. For much of his forty years in Ohio, he lived and worked in a hotel room in Chillicothe. His personal life is known almost entirely from his correspondence with his sister, Sarah.17 She and another sister, Angelina, both joined a Quaker Meeting and became ardent and renowned emancipationists and feminists. Grimké was also the uncle of Francis18 and Archibald Grimké,19 the notable black sons of his brother, both of whom devoted long and vigorous careers to the cause of equal rights for blacks.
Grimké wrote two books, one on literature and one on law. The latter was entitled Considerations upon the Nature and Tendency of Free Institutions. It was first published in Cincinnati in 1848.20 He revised it once. Neither edition was widely read, as he must have expected, because his stated purpose was to "correct . . . the vitiated taste for reading which prevails in our country."21 A reviewer for the distinguished Boston monthly, the North American Review, praised Free Institutions cautiously, giving "'great praise,'" as Grimké noted, "'unwillingly, as if none but a Bostonian could write a great work.'"22
On many matters it treats, Grimké's work may be the most perceptive law book written in the nineteenth century. It was republished by the Harvard University Press in 1968.23 It is, however, a book that will not Page 459appeal to contemporary readers. First, Grimké, despite having nephews of African descent, was a racist. He deplored slavery as inconsistent with the ideals of a free society and offered no defense for it, but he expressed a lack of confidence in the ability of black citizens to participate in democratic government on even terms,24 even though he regarded acceptance of social equality as an indispensable condition of "free institutions."25 Neither slave owner nor abolitionist could find comfort in his words on that subject.
Also, although Grimké ridiculed the nullification doctrine advanced by his fellow South Carolinians,26 he expressed the belief, rejected by Page 460 Marshall, Webster, Jackson, Story, and Lincoln, that a state could secede from the union.27 Indeed, he predicted that before America had a population of 150 million, it would divide into several confederacies.28
It has been said that Grimke was "a sociologist of politics."29 He might better be denoted as a political moralist. The theme of his work was advocacy of a moral duty of lawyers and judges responsible for "free (i.e., self-governing) institutions" to practice self-control and submission to legal texts understood in light of the values of the community they purport to serve. He presented the Constitution of the United States as a framework for the practice of that public virtue, not, as most today would, as a framework for judicial supremacy. "Free," in his vocabulary, referred to the freedom of citizens to govern themselves; only incidentally to that freedom was he concerned with the individual rights that so preoccupy American politics today.
Grimké imposed a lesser but equally important duty on non-lawyer citizens sharing responsibility for "free institutions." The citizen's duty is not only to engage actively in politics, but also to give moral reinforcement to the duty of officers to control themselves and to engage in mutual self- control by imposing moral as well as legal restraints on one another's selfish or idiosyncratic political impulses. Apathetic citizens will, Grimke foretold, become the objects of government as a "self-existing institution,"30 and those who, while participating in public affairs, aggressively pursue their own idiosyncratic preferences or self-interest will beget destabilizing mistrust.
The chief virtue of democracy, in Grimké's view, was its nurturing of a wholesome and productive sense of individual autonomy and self-esteem on the part of citizens, moderated by a shared sense of mutual responsibility. "Kingly authority" he dismissed as "an illusion of the imagination"31 that stunts the moral development of a people. He did not suppose that political conflict among citizens would be painless or that wise decisions would always be made, but did suppose that the process of democratic resolution of conflict rendered men more prudent and more considerate of their fellow citizens than they would otherwise be.32 He Page 461 was also mindful that one is less likely to resent and more likely to accept a political decision that one had a hand in making or at least an opportunity to oppose directly by the power of the ballot.
It is from these premises regarding the merits of self-government that Grimké wrote his most informed and illuminating chapter on the judicial power.33 It begins by dismissing the reassurance of Montesquieu (and implicitly of Hamilton in Federalist Paper No. 78)34 that the judiciary is the weakest of the three departments of government.35 He conceded that the judiciary deals less directly and less frequently with political issues, but those it handles have political consequences, and "[i]f then the judges are appointed for life, they may have the ability to act upon society, both inwardly and outwardly, to a greater degree than the other departments."36Indeed, given the frequency with which other officers rotate in and out of office, he prophesized that...